FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett R.
Loveless, District Judge
H. Balderas, Attorney General Santa Fe, NM Charles J.
Gutierrez, Assistant Attorney General Albuquerque, NM for
E. Tangora, L.L.C. Robert E. Tangora Santa Fe, NM for
STEPHEN G. FRENCH, JUDGE.
Lorenzo Velarde (Defendant) appeals from five counts of
criminal conviction that resulted from two separate trials
regarding his participation as an accessory in a fatal
drive-by shooting in the Albuquerque south valley. We reject
the bulk of Defendant's arguments and affirm all but one
of his convictions; reversing his conviction for resisting,
evading, or obstructing an officer. In reliance on New Mexico
precedent, we reject Defendant's remaining double
jeopardy contentions and hold that sufficient evidence was
presented at the two separate trials to support each of the
jury's verdicts. We also conclude that Defendant's
second trial did not subject Defendant to double jeopardy for
successive prosecutions and that the district court did not
commit: (1) instructional error, (2) error in permitting the
State's gang expert to testify, (3) error in finding
Defendant was not amenable to treatment, or (4) error in
denying a new trial based on juror misconduct.
A week prior to the shooting on October 29, 2009, Defendant
had an encounter with John Valenzuela (Decedent) and Dominic
Llamas, which led to a physical altercation between Defendant
and Llamas. On the day of the shooting, Defendant was driving
his car with Roberto Gonzales in the front passenger seat and
two other passengers in the back seat. Upon seeing Decedent,
Llamas, and Anthony Smith playing football on Cordelia
Street, Defendant specifically pointed out one of the males
in the street as someone Defendant had argued with. Gonzales
then made a comment indicating that he wanted to fight
someone. Subsequently, words and gang-related challenges were
exchanged between Gonzales and Smith.
As Smith moved toward the car to strike Gonzales, Defendant
drove away, made a turn on Bernice Street, and then drove
back toward the location of the shooting on Cordelia Street.
Seconds elapsed before the car driven by Defendant returned
to the vicinity of Decedent, Llamas, and Smith. Defendant
stopped his vehicle near a mailbox at the corner of Cordelia
and Bernice Streets. When Defendant pulled up to the mailbox,
Gonzales was already leaning out of the passenger window
holding a firearm. Defendant cocked it, fired two shots at
Smith, and fired approximately six more shots at the other
individuals in the street. Gonzales fired the shots in rapid
succession. Decedent was struck by two bullets and
subsequently died from a gunshot wound to his chest.
After the shooting, Defendant fled from the scene at a high
rate of speed. While on patrol, Deputy Hix made contact with
Defendant's car, which was stopped at a stop light, by
placing his vehicle by the front left corner of
Defendant's car. After engaging his emergency lights,
Deputy Hix opened his door to give Defendant verbal commands.
Defendant backed his car up and sped forward on the dirt
shoulder. After a pursuit that extended several miles,
Defendant's car jumped a curb and came to a stop.
Defendant immediately got out of his car and fled on foot and
jumped a fence, but he was ultimately apprehended in
approximately 10 seconds.
Defendant was originally indicted by a grand jury on the
following thirteen counts: Count 1: open count of murder
(first and second degree); Count 2: conspiracy to commit
murder; Count 3: felony murder; Count 4: conspiracy to commit
felony murder; Count 5: shooting at or from a motor vehicle
(great bodily harm); Count 6: conspiracy to commit shooting
at or from a motor vehicle (great bodily harm); Count 7:
shooting at a dwelling or occupied building (no injury);
Count 8: intentional child abuse (no death or great bodily
harm); Counts 9, 10, and 11: aggravated assault (deadly
weapon) (firearm enhancement); Count 12: aggravated fleeing a
law enforcement officer; and Count 13: resisting, evading or
obstructing an officer.
In his first trial, Defendant was acquitted by jury verdict
on Count 1, first and second degree murder, and convicted on
Counts 12 and 13, aggravated fleeing a law enforcement
officer and resisting, evading or obstructing an officer. The
jury was unable to come to a verdict on the remaining counts,
and the district court declared a mistrial.
Defendant's second trial resulted in jury convictions on
Count 5, shooting at or from a motor vehicle (great bodily
harm); Count 6, conspiracy to commit shooting at or from a
motor vehicle (great bodily harm); and Counts 9 and 10,
aggravated assault (deadly weapon) (firearm enhancement).
Upon a jury finding that a firearm was used in the aggravated
assaults, the district court enhanced each sentence by one
year, pursuant to NMSA 1978, Section 31-18-16(A) (1993).
Further, the district court merged for sentencing Count 6,
conspiracy to commit shooting at or from a motor vehicle
(great bodily harm) with Count 5, shooting at or from a motor
vehicle (great bodily harm), imposing no sentence for Count
6. After suspension of one year and 181 days, Defendant was
sentenced to 15 years in the New Mexico Corrections
We begin our analysis by reviewing Defendant's
contentions that some of his convictions violate the double
jeopardy clauses of the United States and New Mexico
Constitutions. This Court reviews double jeopardy issues de
novo. State v. Bernal, 2006-NMSC-050, ¶ 6, 140
N.M. 644, 146 P.3d 289.
Double jeopardy affords a criminal defendant three types of
distinct protection. "It protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for
the same offense." Swafford v. State,
1991-NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223 (internal
quotation marks and citation omitted). This appeal, in part,
relates to the third layer of protection, which has been
further divided into two categories: unit of prosecution
cases, "in which a defendant has been charged with
multiple violations of a single statute based on a single
course of conduct, " and double description cases,
"in which a defendant is charged with violations of
multiple statutes for the same conduct[.]" State v.
DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131
P.3d 61. Defendant maintains that the protection against
multiple punishments for the same offense bars: (1) his
conviction for resisting, evading or obstructing an officer;
(2) imposition of the firearm enhancements for each of the
two aggravated assault convictions; (3) his conviction for
conspiracy to commit ...